Tuesday, June 28, 2011

Violent Video Games: Present, Past, and Future

By Mike Dorf

The Supreme Court's decision in Brown v. EMA--invalidating California's law barring the sale of violent video games to minors absent parental consent--produced four opinions.  Here are a few thoughts on each.

1) Justice Scalia wrote the majority opinion for himself and Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  So much for any notion that women would be more sympathetic to the regulation of violence than men would be.  All three female Justices voted the most free-speech libertarian position.  Tiny sample size? Of course.  I'm just saying . . . .  Meanwhile, Scalia and Kennedy breaking liberal here is not really a surprise. Each one (and especially Kennedy) has a pretty strong free speech libertarian streak.  This has been known since 1989, when they both joined the liberals to strike down the flag-burning law in Texas v. Johnson.  As for substance, the majority opinion makes considerable use of the Cato Institute brief, which pointed to prior instances of misplaced hysteria about media corrupting the youth--movies, comic books, television, music lyrics, etc.

2) Justice Alito, joined by CJ Roberts, concurred in the judgment on the ground that the California statute is unconstitutionally vague, but in many respects the opinion reads like a dissent. Alito's (de facto) dissent is not really surprising. The majority relies heavily on United States v. Stevens, from which Alito was the lone dissenter, but given that CJ Roberts wrote the majority in Stevens and wrote another strongly free speech opinion earlier this term in Snyder v. Phelps, one might wonder what he's doing with Alito here.  The answer, I think, is that CJ Roberts has a much narrower view of the free speech rights of minors than of adults, as evidenced by his opinion in Morse v. Frederick, the "bong hits 4 Jesus" case.

3) Speaking of the rights of minors, Justice Thomas goes way further to deny them.  Adopting an originalist methodology, he says that when the First Amendment was enacted, no one had a right to speak to minors, without the consent of the minors' parents. So he dissents.  Note that this theory would validate a law banning the sale of any and all books, magazines, etc., to minors, absent parental consent. Now, I'm not an originalist of any flavor, so maybe it's not my place to raise this objection, but it does strike me as highly peculiar to inquire into the 1791 understanding of the First Amendment in a case involving California rather than the federal government. States are bound by the First Amendment only because it is "incorporated" by the Fourteenth Amendment.  So I would think that Justice Thomas's inquiry into the scope of minors' rights circa 1791 only makes sense, even on originalist premises, if the public meaning of the Fourteenth Amendment as of 1868 was that it incorporated the Bill of Rights as the Bill of Rights was originally understood, rather than, say, incorporating what people in 1868 thought the Bill of Rights meant, or what people in 1868 thought that people in 1791 thought the Bill of Rights meant.

4) Justice Breyer also dissents. It's no real surprise that he broke conservative. With a long appendix of studies showing harmful effects of video games, Breyer's opinion is reminiscent of much-earlier opinions by Felix Frankfurter and others, who regarded free speech claims as no less susceptible to balancing against other interests than other sorts of claims.  In 1918, Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, in his view, "freedom of speech stands no different from freedom from vaccination." Breyer isn't quite there, but his willingness to defer to government expertise makes him probably the most statist Justice on the current Court, a title that belonged to CJ Rehnquist prior to his death.

Finally, I'm not surprised that no one gave much consideration to my suggestion that the case really presents a question about whether participatory virtual reality games are best understood as speech or as non-expressive conduct analogous to shooting a toy gun. The issue wasn't presented by the cert questions. Still, I take some comfort from the fact that Justice Alito did suggest that video games that simulate reality could be very different from the sorts of violent amusements about which people worried in the past. However, he made that point in the service of an argument that violent video games are regulable speech, not that they aren't speech at all. Oh well. We're not there yet, but it's gonna be the future soon.


egarber said...

I'm curious about the implications for obscenity doctrine in all this.

California essentially attempted to characterize the bloodiest video games as a relative of obscenity, which should only trigger an easy rational scrutiny test for the government. But the Court pushed back, ruling that such an approach doesn't merely refine the contours of a given unprotected class of speech; it creates a new category altogether, thus weakening the First Amendment.

This makes good sense, but I think the logic of it pushes the question further: if bloody and violent interactive games are First Amendment "speech", why isn't obscene expression?

Scalia writes about the underinclusive nature of California's law -- in that video games are being singled out amid many (arguably) harmful forms of media. It seems to me that in a broader sense, the same reasoning applies to obscenity. With so many offensive forms of expression out there, why is obscenity singled out and given no First Amendment protection at all?

A convincing argument can be made that exposure to violence -- murder, rape, ethnic cleansing -- is *more* harmful to children and people generally than content that appeals to their "prurient interest." Yet the former comes with First Amendment protection, while the latter is lumped in with incitement or fighting words (other unprotected categories) -- all because a bunch of old white guys on the Supreme Court made an arbitrary decision about it many years ago.

I know that bigger question wasn't presented in the California case; however, Scalia makes a passing effort to defend obscenity bans, writing that there's an American tradition of upholding certain sexual mores. But "tradition" is among the weakest of arguments, imo -- after all, it was once our "tradition" to maintain a racially segregated society under 14th Amendment "equality."

Don't get me wrong, I'm not saying yesterday's ruling was wrong. My point is that the Court should go further when given the opportunity and throw out its obscenity doctrine. There's just not enough space between it and other forms of speech (brutal violence, for example) to justify radically different treatment.

Michael C. Dorf said...

A majority of the Court takes the view that the categorical exceptions are validated by tradition, more or less on originalist grounds: The framers and ratifiers should be understood to have used "freedom of speech" as a term of art that excludes traditionally regulable speech, like obscenity. Since violence doesn't fall into a traditional categorical exception, on this logic, it's not regulable. This argument works for Scalia but it's not clear why it works for the rest of the majority, which is non-originalist. The best answer, I think, is that they're free speech libertarians and so they accept this approach because it cabins the exceptions.

Blogger said...

Thanks for making the point about the Fourteenth Amendment. Strangely, the opinion doesn't mention it once. When originalism meets incorporation, the two sometimes seem to create a jurisprudential black hole.

Also, I might be wrong, but it looked like the Court added a new required element to satisfy 1st Amdt strict scrutiny. Now, not only must the law be narrowly tailored to serve a compelling state interest, but the state must also "specifically identify an actual problem in need of solving." See p. 12.

For this proposition, the Court cited U.S. v. Playboy, 529 U.S. 803. There, Playboy successfully sued to strike down limitations on the time of day it could broadcast its material, which were put in place because flickers of pornographic images could sometimes still be seen through the scrambled signal. The court sustained the challenge because the government had not made a claim about how wide this problem was.

But here in Brown, the court appears to have substantially extended this rationale; in fact, the government had proffered quite a bit of evidence about the link between violent video games and children's violent behavior. The Court just found this evidence to be unpersuasive and thus not sufficient to be an "actual problem".

So, do we have a new standard? Compelling interest + narrow tailoring + actual problem (as found by the Court)?

egarber said...

>>The best answer, I think, is that they're free speech libertarians and so they accept this approach because it cabins the exceptions.

That makes sense. If exceptions are contained, they can wither away. And it's not like the justices were asked point-blank about obscenity, so no real question was answered about it -- except I guess whether it encapsulates gratuitous violence.

I suppose one oddball reality of this is the following hypothetical:

1. Georgia bans the sale of video games that depict ejaculation.

2. California bans the sale of video games that depict violent rape (with no vivid sexual content).

The law in 2 gets thrown out, while 1 remains in force, according to current precedent. If I'm right, something is really broken, imo.

egarber said...

In a related question, does this ruling mean that states can't pass laws limiting the placement of violent video game displays in retail outlets -- to keep them away from very young children? Or is that a lighter burden on the speech itself, so strict scrutiny doesn't apply?

Michael C. Dorf said...

Your example would probably be upheld as a reasonable time, place and manner rule.

Mike E said...

I am still confused on the differences between this law and the one upheld in Ginsburg. Scalia seems to say that violence has never been considered obscenity and therefore does not fall out of the protections of the 1st amendment, as sexual material does. Fine. But that doesn't answer why the non-obscene photographs in Ginsburg were permitted to be restricted.

Eric Segall said...

tarideaMichael, why do you characterize the opinions overturning the law as "liberal?" Strong judicial protection of speech these days hardly has "liberal" results unless you are talking about classical liberalism.

Michael C. Dorf said...

Mostly I use the term "free speech libertarian" and "liberal" only as a shorthand for that. I did not intend anything normative in these labels.

Joe said...

"But that doesn't answer why the non-obscene photographs in Ginsburg were permitted to be restricted."

The material was still "sexual" in nature and the cited ruling allows a weaker test for minors in that regard. It specifically talks about sexual material though some of its dicta could (if taken alone) apply to other types of speech too.

Scalia rests on history here, not the questionable logic involved. The logic of not allowing fifteen year olds to see scenes with a few quick glances at a topless women while allowing them to see violent films of all types is questionable.

But, sex has been treated differently in this culture, including as matter of what is morally proper. The "obscenity" test for adults, which focuses on sex, though many find Hostel type violence more obscene underlines the point.

Mike E said...

But historically material being "sexual" was not enough for it to fall out of first amendment protection. It was only if that material crossed the line into the category of obscenity. Therefore, obscene speech is a category soley onto itself. Put another way, it is not obscene because it is sexual but obscene because it meets the categories of obsenity, only one of which is that it is sexual in nature.

The material in Ginsburg was not obscene and therefore naturally would fall into the category of protected speech. If the Court was willing to make an exception for the non-obscene material in Ginsburg, it would appear they could do the same for video games. There may be reasons for them not to do so, but history does not seem to stand in its since they broke the historic divide already once before, in Ginsburg.

Joe said...

"It was only if that material crossed the line into the category of obscenity."

I didn't say ANY discussion of sex was verboten. I said it was treated differently.

"The material in Ginsburg was not obscene and therefore naturally would fall into the category of protected speech."

Sex is still treated differently, but the rules a looser for minors. As Scalia said:

“Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik

"Obscene as to youths" is Ginsburg; it singled out sex. So, it doesn't answer the "history" point.

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